#### Fiegel *versus*Latour.

1. Generally damages for a breacli of contract are to be measured by the profits which the bargain would have yielded to the party whose contract has been broken.

2. Defendant contracted with plaintiff for three months’ use of rooms, and boarding, for his family, at $56 per week, and paid weekly. At the end of two months lie left. *Held,*that plaintiff could recover for the remaining time.

3. The contract was entire for the whole time. There being other boarders served at a common table, and no evidence separating the value of the boarding, the price agreed on was proper evidence for the jury as to the loss.

March 29th, 1875.

Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.r,

Error to the District Court of Philadelphia, of July Term, 1873, No. 118.

This was an action of assumpsit brought October -31st, 1871, by E. E. Latour against Levi Fiegel.

The ease was tried on the 17th of April, 1873, before Mitchell, J.

The cause of action was on a contract made between the plaintiff and defendant for boarding, and the use of two rooms, for three months, from the last day of June until the last of September, 1871. The defendant occupied the rooms until the last of August, when he left. The suit was brought to recover for the remaining four weeks.

The plaintiff testified that she kept a boarding-house at Mount Airy." In April the defendant came to her house. She showed it to him ; showed him the twro rooms, and told him the price would be $56 per week, and that she would not let them for less than three months. The defendant, by letter of April 25th, 1871, said that he would take the rooms. The defendant and his family came on the last day of June, and left on the last day of August. The contract was to take the two rooms at $56 per wreek. He paid plaintiff regularly every week, until he left. Plaintiff was to furnish him board and lodging for himself, wife, son, and daughter, for all which he was to pay'$56 per week. Plaintiff had her regulations on the door of defendant’s room. When he came, in April, he and his wife read them.

Defendant testified, that at the interview in April he said to plaintiff that he must have his breakfast at a quarter before 6 o’clock, to take the train for Philadelphia, to attend to his business. .She said no one could get breakfast at her house at that time. He got his breakfast for a few days at that hour, and afterwards was unable to get it. Plaintiff* charged defendant also for the use of gas in his rooms.

Defendant testified also that. plaintiff said there were *449boarders with her who would remain till October, which was a consideration for his coming. These boarders left early in the season.

The defendant submitted the following points:

1. If the jury believe that the plaintiff declined to furnish light for the defendant’s use, without extra charge therefor, that would be such a violation of her contract as justified the defendant in removing from her house, and the verdict should be for the defendant.

2. If the jury believe that the plaintiff declined to furnish the defendant with meals at proper times, that would be such a breach of the contract as would have justified the defendant In removing from her house, and the verdict should be for the defendant.

* * * * *

4. If the jury believe that the plaintiff in any manner failed to perform her contract, the defendant was justified in removing, and the verdict should be for the defendant.

The Court charged:

My answer to defendant’s points will give you the law of this case.

As to the first and second points I will say that ordinarily a contract for board and lodgings will include light and meals. [But if the plaintiff had regulations imposing an extra charge for light, if they were put up on the door and defendant read them, and they were part of the contract, and I charge you that if defendant read and assented to them, before making his bargain, they were part of the contract, and the plaintiff was under no obligation to furnish light without extra charge.]

So as to the meals. If the regulations are part of the contract, she was not bound to furnish breakfast before the hour therein named. A boarding-house keeper, having a number of different tastes to please, is entitled to make reasonable regulations to promote the general convenience of her household. If, however, you are of opinion that the regulations are not part of the contract [you may then consider also whether the defendant, by staying for many weeks after the plaintiff’s failure to furnish light and breakfast, and paying for his board regularly without any complaint to the plaintiff, did not waive any objections he may have .had to her failure to furnish such light and breakfast].

* * * * * *

The fourth point I affirm, but the jury are to find what the contract was. That the rooms were engaged for three months the evidence does not differ. If the plaintiff has *450failed to fulfil her contract, as to its substantial requirements, then the defendant is not liable.

[If you find that the plaintiff did comply with her contract, then you may find for plaintiff for four weeks’ board, at fifty-six dollars per week, and interest from the date.]

The verdict was for the plaintiff'for $224.

The defendant took a writ of error. He assigned for error the part of the answer to the fourth point in brackets.

*M.*Sulzberger, for plaintiff in error.

The proper measure of damages in this case was the amount agreed to be paid by the defendant, less the cost of the food which the plaintiff never furnished. “ In an action to recover damages for the breach of a parol contract, by which the defendant engaged to employ the plaintiff to cultivate a farm upon shares, the proper measure of damages is, the profit which the plaintiff would have made on the farm,if the contract had not been violated:” Hoy *v.*Gronoble, 10 Casey, 9.

Where damages are claimed for loss of profits on a contract, the plaintiff’ is as much bound to prove them as he is to prove the contract itself. The jury cannot be asked to guess. They are to try the case on evidence, not upon conjecture: Lentz *v.*Choteau, 6 Wright, 435.

*Vail,*for defendant in error.

Judgment was entered in the Supreme Court, April 2d, 1875.

Per Curiam :

There is no doubt that damages generally are to be measured by the profits which the bargain would have produced to the party whose contract has been broken by his adversary. Hence the chief value of the bargain was in the rooms and lodgings as to the defendant, and not in the food served upon the common table of a boarding-house filled with boarders ; and the contract being entire for the whole time, and no evidence having been given by the defendant to separate the small proportion of the value of the food from the other portion of the loss, the price agreed upon was at least *prima facie*evidence to go to the jury.

Judgment affirmed.